The Justice Department is becoming our primary enemy

Attorney General Jeff Sessions. Mark Lennihan, AP.

by Rob Howard
Political Columnist

Now in the twelfth month of the Trump administration, the danger’s to LGBT+ rights couldn’t be more clear. The Justice Department, under Trump, has issued both memoranda and court briefs denying that LGBT+ people are protected against employment discrimination by federal civil rights law.

The department is becoming LGBT+ peoples’ primary enemy. They have also taken extreme anti-LGBT+ positions in the area of religious protections, but I’m going to focus on job protection for now.

Protections against employment discrimination are contained in Title VII of the Civil Rights Act of 1964. Discrimination based on race, color, religion, sex or national origin is banned nationwide. While Title VII does not specifically prohibit discrimination based on sexual orientation or gender identity, most experts and many courts have said it doesn’t need to.

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate in employment against a job applicant, employee or former employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.

In 2012 the EEOC ruled that discrimination against a transgender individual because of that person’s gender identity is discrimination based on sex, and therefore violated Title VII.

In 2015, the commission held that a claim of discrimination on the basis of sexual orientation necessarily states a claim of discrimination on the basis of sex under Title VII.

As far back as 1989, the Supreme Court ruled in Price Waterhouse v. Hopkins that employment discrimination based on sex stereotypes (e.g., assumptions and/or expectations about how persons of a certain sex should dress, behave, etc.) is unlawful sex discrimination under Title VII.

The EEOC on its website has an extensive list of appellate and lower court decisions that affirm Title VII protections against discrimination based on gender identity and sexual orientation. Most of those decisions took place in the last five years, although gender identity decisions go back at least to 2000.

The Obama administration did not oppose these decisions, and in its last year took several LGBT+ affirming positions.

Once the Trump administration took office and Jeff Sessions became Attorney General, the Justice Department took an abrupt about-face on the matter of LGBT+ protections under Title VII.

In July, the department filed an amicus (friend of the court) brief in a New York case in which a worker sued his former employer over being fired because he was gay. The brief said, “The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”

In October Sessions formally determined that Title VII did not protect transgender workers against employment discrimination. The AG said, “This is a conclusion of law, not policy.”

It is not. The Justice Department does not make determinations of law; courts do. And as noted above, there are a significant number of federal court decisions that have ruled the direct opposite of the department’s position on the matter.

All of these decisions on protections for LGBT+ people are based primarily on the Waterhouse decision by the Supreme Court. Although that decision was based on “sex stereotypes” dozens of courts have built substantial case law that declares Title VII protections.

The Supreme Court has not directly decided on this issue. It could decide against protections. But until they do, according to the EEOC rulings, you are protected against employment discrimination based on your sexual orientation or your gender identity. According to the Department of Justice, you aren’t. Stay tuned.